The
Defendant, Brandon Lee Clymer, was convicted of rape of a
child by a Davidson County Criminal Court jury. He is serving
a twenty-six-year, Range II sentence. On appeal, he contends
that: (1) the evidence is insufficient to support his
conviction, (2) the trial court erred in admitting evidence
of the victim's forensic interview, (3) the trial court
erred in admitting the Defendant's pretrial statement
without redacting opinions expressed by police officers, (4)
the trial court erred in overruling the Defendant's
objection to the State's rebuttal closing argument, (5)
he is entitled to a new trial due to cumulative trial error,
and (6) the trial court imposed an unconstitutional and
excessive sentence. We affirm the judgment of the trial
court.

Robert
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Alan E. Glenn, J., joined. Norma McGee Ogle, J.,
concurred in the results.

OPINION

ROBERT
H. MONTGOMERY, JR., JUDGE.

The
Defendant's conviction relates to the December 2013
digital-vaginal penetration of the then-six-year-old victim.
The Defendant was a family friend at the time of the offense.

At the
trial, the victim testified that her birthdate was July 25,
2007. She said that two years earlier, in 2014, the Defendant
"digged in" her "pee pee." She identified
her pee pee as her private area. She said the incident
occurred next to the computer in the kitchen of her
aunt's house. She said she had been standing and playing
games on the computer. She said that she wore a dress and
that the Defendant touched her skin. She did not recall how
long the incident lasted or how it ended. She said that she
told her mother, her aunt, and her uncle what happened. The
victim said her mother called the police. The victim did not
know if she talked to the police but said she was interviewed
by "Ms. Lillie" at the Nashville Children's
Alliance. She said that before she came to court, she watched
a video recording of her interview.

The
video recording of the victim's January 10, 2014
interview was played for the jury. It reflects the following:
The victim lived with her mother, aunt, and two cousins. The
victim pointed to parts of her body that were "private
places, " and she identified them on a drawing. She
identified them as "nipple, " "pee pee, "
and "butt." She said "Brandon" touched
her pee pee more than once on one date. She said the
touchings occurred while she used a computer in the kitchen
and while she watched "Panda Bears Christmas." She
said that he touched her pee pee on her skin and clothes and
that he touched her pee pee inside and outside. When asked
how it felt when Brandon touched the inside of her pee pee,
the victim stated it felt like "nothing." When
asked how it felt when he touched the outside of her pee pee,
the victim stated, "It feeled [sic] like he wasn't
touching me." The victim stated that the incident at the
computer occurred first, that Brandon sat in a chair, that he
put one of her legs on a chair as she stood, that Brandon did
not speak, that she wore a dress and panties, and that he
moved her panties and "started digging in" her pee
pee. She said it felt like Brandon was not doing anything.
When asked what digging meant, the victim stated, "It
means you're digging in the dirt looking for stuff."
She said he moved his hand from side to side. When asked if
she had said Brandon's fingers went inside her, she said,
"Mmm hmm, " and nodded. When shown a drawing and
asked if he put his fingers inside the hole, she said he did
not. When shown the drawing and asked if he put his fingers
"inside the two parts over here, " the victim
nodded affirmatively. The victim added that the Defendant
touched "the line on your pee pee" and was
"swinging that around." She said three people were
in the living room and another person was upstairs. The
victim said that Brandon stopped when her mother walked in
and that her mother did not see anything.

In the
recorded statement, the victim said that the second incident
occurred as she and Brandon lay on the bed in the room she
and her mother shared. The victim said that others were in
the living room and that her brother was in the bedroom lying
on the bed with Brandon and her. She said Brandon put her
under the covers. The victim said, "He did this, "
and made a motion with her hand, but what she demonstrated is
not visible on the recording. She made a motion with her hand
a second time, the details of which are not visible on the
recording, and the interviewer asked if Brandon stuck his
hand in the victim's pants. The victim responded by
making a motion, which again is not visible on the recording,
and stated, "Just like this." When the interviewer
asked if the victim meant the back of her pants, the victim
nodded. When asked how this felt, the victim responded with a
statement that is unintelligible on the recording. The victim
said the Defendant did not touch her pee pee and agreed that
he touched around the back of her pants. When asked to
clarify if she meant he touched around the top part of her
pants or her butt, the victim stated he touched her skin at
the top part of her pants. She said he did not speak during
the incident. The victim stated that Brandon did not do
anything to himself and that he remained clothed during the
incidents. She said Brandon's actions made her feel
"weird." The victim stated that no one other than
Brandon had ever touched her inappropriately. The victim
stated that after Brandon left, she told her mother what
happened and that her mother told other family members. The
victim first said the incidents occurred after Christmas but
then said she thought it was "about to be
Christmas."

The
victim testified that she remembered everything and that her
recorded statement was true. She agreed that the statement
had been given two years earlier and that she had been six
years old when the incident occurred. She agreed the
Defendant touched her twice: once when she was at the
computer and once when she was upstairs watching "Panda
Christmas." She said the incident at the computer
occurred first. When asked to reenact how she had
demonstrated in the interview that the Defendant had touched
her, she said she did not remember. She agreed that she said
in the interview that the Defendant touched the outside and
the inside of her pee pee. When asked to demonstrate where
the Defendant's finger had been relative to
"outside" and "inside, " she stated that
she could not remember.

The
victim testified that she understood the importance of
telling the truth and that she was truthful in her testimony.
She identified the Defendant in the courtroom. The victim
said that the Defendant was her uncle's friend, that she
and her mother lived with her aunt and uncle for one to two
months, and that the Defendant visited at their house.

During
cross-examination, defense counsel drew a diagram of the home
in which the incidents occurred based upon the victim's
descriptions. She agreed that her mother, two grandmothers,
an aunt, an uncle, her brother, and two cousins had been at
the house on the date of the incidents. The victim said the
Defendant's visiting the house was normal.

The
victim agreed that the only time the Defendant touched her
pee pee was when she stood at the computer. She agreed that
the adults, other than the Defendant, watched a movie in the
living room and that she was not home alone with the
Defendant when this occurred. She said that she was never
home alone with the Defendant that day and that she had never
been home alone with him. She agreed that the Defendant
touched her skin but that his finger did not go inside the
hole on her pee pee. She agreed that her mother walked in the
kitchen and that her mother did not see what the Defendant
had done to her. She said that the Defendant touched her a
second time in the kitchen and that she told her mother after
the second time.

The
victim agreed that the Defendant did not touch her pee pee in
the bedroom. She agreed that her brother was in the bedroom
with the Defendant and her when the Defendant touched her on
her back. She said he did not touch her between her legs.

The
victim agreed that she knew it was important to tell her
mother what happened. She said at first that she did not
think her mother had talked to her about what to do if an
adult touched her inappropriately, but she later conceded her
mother might have. The victim said that after she told her
mother, her mother told her aunt and uncle about what
happened. The victim said her aunt talked to her about what
happened. She agreed that she heard her whole family
discussing the matter and that it was upsetting. The victim
said her mother called the police quickly. She did not
remember talking to Officer Earle or other officers. She
remembered talking to Ms. Lillie, the interviewer on the
video recording, but she did not remember talking to Ms.
Tamika on the day of the recorded interview or at her school.
She agreed that she talked to Ms. Lillie shortly after the
incidents and that the incidents occurred when "it was
about to be Christmas."

The
victim testified that she did not know whether she had talked
to her mother, her uncle, and her aunt after her interview
with Ms. Lillie. The victim did not know whether she had seen
a doctor or a counselor since the interview. She said she had
watched the recording of the interview the previous day in
Ms. Tamika's office but said she did not know Ms. Tamika.
She agreed that watching the recording helped her remember
things.

The
victim's mother testified that she, the victim, and the
victim's brother moved to Tennessee in 2013. The
victim's mother said they moved into the home of her
sister, her sister's husband, and her two nieces.

The
victim's mother identified the Defendant. She said the
Defendant and her sister's husband had been best friends
in 2013. She described the Defendant as being "like a
family member."

The
victim's mother testified that on December 21, 2013,
everyone was home and that the Defendant arrived around 11:00
a.m. or noon. She thought he arrived while she and her sister
were away from the home running errands. The victim's
mother said she and her sister returned around 4:00 to 5:00
p.m. She later said they might have returned around 3:00 p.m.
She said she would disagree if a police report said they were
only gone from about 1:00 to 1:15 p.m. She did not recall
telling a detective that the Defendant had been present when
she left and that she asked the Defendant to watch the
victim. She said she "would never say that" and
stated that her sister's husband watched the children.
The victim's mother said that her mother and grandmother
arrived while she was away and that they stayed until 6:00 or
7:00 p.m. She said the adults socialized, ate pizza, and
watched a movie in the living room, and the children played,
ate pizza, and watched a movie upstairs. She said the
Defendant and her sister's husband went upstairs to take
pizza to the children, that her sister's husband returned
first, and that the Defendant did not return for another
fifteen to twenty minutes. She said the Defendant was the
only adult upstairs during this time. She said that after the
Defendant returned, the adults socialized and that the victim
came downstairs to use a computer in the kitchen. The
victim's mother stated that as she went outside to smoke,
the victim asked to speak to her. The victim's mother
said that she could tell the matter was serious by the look
on the victim's face, that the victim told her the
Defendant had touched the victim's pee pee and felt the
victim's butt, and that the victim's mother got her
sister and had the victim repeat her statement to the
victim's mother's sister. The victim's mother
said that her sister got her sister's husband, that they
had the victim repeat her account to the sister's
husband, and that the sister's husband asked the
Defendant to leave without giving the Defendant an
explanation. The victim's mother said the Defendant left
quietly, which was unusual because he was normally
argumentative and confrontational. She said that she called
the police and that they arrived after the Defendant's
departure.

The
victim's mother testified that before December 21, 2013,
she had told her children not to talk to strangers and to run
away if a stranger tried to talk to them. She said she told
them to tell her if someone touched them in a way that made
them feel uncomfortable. She agreed that she was a single
mother and that she was protective of her children, in part,
because she had been sexually abused as a child. She said she
had never spoken to her children, either before or after
December 21, 2013, about the sexual abuse she suffered.

The
victim's mother testified that she had not seen the
Defendant since December 21, 2013. She said this was unusual
because until that date, he came to her sister's house
daily and that her sister was annoyed by the frequency of his
visits.

The
victim's mother testified that a detective came to the
house and talked to "us, " although she said the
detective did not talk to the victim. The victim's mother
said she told the detective that the victim had been sexually
abused, although she did not recall if she told the detective
about multiple instances of abuse. She was unsure if the
victim had revealed the extent of the abuse to her at this
point. She did not recall if the police told her family to
avoid further contact with the Defendant. The victim's
mother said that during the course of the investigation, a
succession of detectives was assigned to the case and that
she talked to several detectives. She said she spoke with
Department of Children's Services (DCS) employee Tamika
Drennan but did not recall telling Ms. Drennan that she did
not think a medical examination was necessary because the
victim had not been penetrated. The victim's mother said
the victim met with DCS personnel "[a]t the forensic
interview." The victim's mother agreed that the
victim had met with the forensic interviewer, the
prosecutors, and a victim/witness coordinator and that the
victim had been to court "a few times." The
victim's mother said the victim had not attended therapy.

The
victim's mother did not recall if she told Detective Mike
Bennett that the Defendant had been upstairs alone with the
children for about fifteen minutes. She said she met with Ms.
Drennan once and did not recall if she told Ms. Drennan that
the Defendant had been alone with the children. The
victim's mother said she saw the victim and the Defendant
in the kitchen together on December 21, 2013. She said she
saw the victim straddling the Defendant's knee when the
victim and the Defendant were in the kitchen at the computer
and did not recall if she reported this to a detective or a
DCS employee. The victim's mother said she never had a
real opportunity to talk to anyone and said that when she did
speak with a detective, they merely asked her questions. She
said she thought she had done what she was supposed to do.
She agreed that she did not see the Defendant touch the
victim's vagina.

The
victim's uncle testified that on December 21, 2013, he
lived with his wife and his children. He said that the
victim's mother, the victim, and the victim's brother
were living with them temporarily and that his mother-in-law
and his wife's grandmother were visiting on that date.
The victim's uncle did not recall if his brother was at
the home on December 21. The victim's uncle identified
the Defendant, whom he said was "basically a brother to
us." The victim's uncle said his sister and the
Defendant's cousin were married. The victim's uncle
said that he and the Defendant would "hang out sometimes
for days on end" and that on December 21, they were very
close. The victim's uncle said that the Defendant and
everyone in the victim's uncle's household were close
and that they loved and trusted the Defendant.

The
victim's uncle testified that on December 21, 2013, his
wife and the victim's mother left for most of the day,
returning around 3:00 to 4:00 p.m. He said he and the
Defendant "hung out" and played a video game. The
victim's uncle said the Defendant was at the house most
of the day, and the victim's uncle did not recall if the
Defendant had stayed overnight the previous evening. The
victim's uncle said that at one point, the Defendant
cared for the children when the victim's uncle went to a
store. The victim's uncle said that during the early
evening, the Defendant had been in the kitchen using the
victim's uncle's computer. The victim's uncle
said that after his wife and the victim's mother
returned, "We were mostly hanging out watching a movie,
" and that the Defendant was in the kitchen with the
victim "hanging out on the computer." The
victim's uncle said the Defendant seemed attached to the
children, especially the victim, that evening, which was
unusual behavior for the Defendant. The victim's uncle
said that he and the Defendant went upstairs together to take
pizza to the children. The victim's uncle noted that at
another time, the Defendant went upstairs to check on the
children and lay in bed and watched a movie with them. The
victim's uncle stated that at one point, he was upstairs
and saw the Defendant lying in bed with the victim and one of
the victim's uncle's daughters. The victim's
uncle said that he asked the Defendant when the Defendant was
going to come downstairs to socialize with the adults and
that the Defendant responded, "I'll be down there in
a little while." The victim's uncle said the
Defendant returned downstairs at some point.

The
victim's uncle testified that at one point on the evening
of December 21, 2013, his wife asked him to come outside. The
victim's uncle said the victim's mother told him that
the Defendant had touched the victim inappropriately. The
victim's uncle said that he went inside, that he heard
the bathroom sink running, that he saw the Defendant coming
out of a bathroom drying the Defendant's hands on the
Defendant's pants, and that the victim's uncle
brought the victim outside. The victim's uncle said that
he asked the victim what happened and that she told him. The
victim's uncle said he returned to the living room and
asked the Defendant to leave because they had family business
to which they needed to attend. The victim's uncle said
the Defendant stated, "[T]hat's okay, I will see you
later." The victim's uncle said the Defendant's
reaction was unusual because the Defendant could be
"nosey." The victim's uncle said that he did
not tell the Defendant about the sexual abuse allegations and
that the Defendant did not inquire. The victim's uncle
said that he had not heard from the Defendant since December
21, 2013, and that this was unusual because they had been
close. The victim's uncle identified a photograph of his
home, which he agreed was a duplex with his living area being
about 1120 square feet.

The
victim's uncle did not recall if he told a detective
about the Defendant's unusual attachment to the victim on
December 21, 2013. The victim's uncle also did not recall
if he told an investigator about seeing the Defendant in bed
with the victim.

The
victim's uncle testified that he was "very
close" to his sister's husband, who was the
Defendant's cousin. The victim's uncle said he called
his sister's husband on the night the allegations arose.
He agreed that he spoke with a detective and a DCS employee
about the allegations. He also agreed that he did not see the
Defendant touch the victim.

Lillie
Kennedy, a forensic interviewer and an employee of Nashville
Children's Alliance, testified that she interviewed the
victim. Ms. Kennedy stated that she had received specialized
training to be a neutral party in interviewing children and
that she was not a member of law enforcement. She said,
however, the Nashville Children's Alliance was a member
of the Child Protective Investigation Team (CPIT) and
acknowledged that the police department, DCS, and district
attorney general's office were involved with CPIT. She
said the training she received for conducting forensic
interviews was not a method that was typically utilized by
law enforcement. She agreed that based upon her interview of
the victim, she prepared a report, which she submitted to her
supervisor and the other members of CPIT. She acknowledged
that on the "forensic interview disclosure information
guide" she completed as part of her report, she selected
the type of contact the victim reported as "fondling,
" not "digital penetration."

Ms.
Kennedy testified that she began an interview of a suspected
child sexual abuse victim by building rapport with the child
and that she asked neutral questions before transitioning to
inquiries about anatomy identification and touch. She said
that this typically led to the child making a disclosure and
that she asked follow-up questions. She said that she used
open-ended questions initially but asked more direct
questions to clarify what the child said. She agreed that
responses to leading questions could yield less reliable
information than open-ended questions and that when she asked
more direct questions, she was focused on specific details
provided by the child. She said she ended an interview when
the child appeared to have given all the information the
child had. She said that she typically received a DCS
referral and sometimes had a police report before conducting
an interview. She thought she had only a DCS referral before
she interviewed the victim. Ms. Kennedy stated that she tried
to limit conversation with a child's family members to an
introduction before an interview. She said that although only
she and a child were in a room during an interview, other
members of CPIT observed the interview. She said a
child's friends and relatives were not allowed to
participate. She said that forensic interviews were recorded
in order to avoid the child's having to discuss the
allegations repeatedly and that the child's family was
not given a copy of the recording.

Ms.
Kennedy testified that she had conducted approximately 677
forensic interviews in her career. She said she had an
undergraduate degree in communication studies and a minor in
psychology. She attended twelve hours of continuing education
annually, and in the previous year, she attended an
additional symposium. She said that when she interviewed the
victim in 2014, she had been in Nashville for two months. She
said that before she began working in Nashville, she had
worked for one and one-half years as a part-time forensic
interviewer in Dickson County, although she had other
employment between the Dickson County job and the Nashville
job.

A
portion of the victim's recorded interview was played.
Ms. Kennedy testified with regard to a drawing seen in the
recording on which the victim circled body parts and that Ms.
Kennedy labeled them with the names the victim used for the
parts. Ms. Kennedy agreed that when she discussed the drawing
with the victim, she asked the victim if the Defendant's
finger "went inside her hole" and that the victim
said, "no." Ms. Kennedy thought that the victim had
said the Defendant's finger went inside "the
line" and that Ms. Kennedy had asked if the victim meant
inside the "two parts." Ms. Kennedy said that Ms.
Kennedy had referred to a line on the drawing representing
the vaginal lips.

Metro
Nashville Police Detective Elizabeth Mills testified that she
was assigned to the Defendant's case, although two other
detectives had handled the case before her. She said that she
and Detective Nathan Smith located the Defendant at a
relative's house and interviewed the Defendant. An audio
recording of the August 1, 2014 interview was played for the
jury. In the interview, the Defendant stated the following:
He was aware the victim's mother had called the police
because the victim said the Defendant touched the victim. He
first heard about the allegations in January of an
unspecified year. Someone left a handwritten message at the
Defendant's grandfather's house, but the Defendant
did not call the number in the message. The Defendant knew
the victim's mother from going to his
"cousin-in-law's house and hanging out." The
Defendant said he had been left alone a few times with the
victim and the cousin-in-law's children. He said he was
not a sexual predator and that he had been upset and thought
the allegations were offensive. He recalled an occasion on
which he was at his cousin-in-law's house and had been
drinking and watching a movie, although he could not recall
the date. He thought that at some point, he had been upstairs
on the bed watching a movie with the victim and another
child. He said that his cousin-in-law asked him to leave,
that he heard arguments in the back of the house, that
arguments were not unusual in the house, and that he did not
"think anything of it." He said he had no
indication why he was asked to leave. He said that about one
month later, he mentioned to "Josh" that the police
had looked for the Defendant at his place of employment. He
then learned about the victim's allegations. The
Defendant did not know why the victim would make the
allegations and said that if he had touched the victim's
vaginal area, it had to have been accidental. He said,
"Obviously something happened that was
misconstrued." He said the victim sometimes straddled
his knee and that when he was tired of having her sit there
but she did not want to move, he would "unclench
her." He said the victim was a "huggy, touchy
child" who liked to be around people. He said that he
might have picked up the victim and touched her between her
legs but that he was merely playing with the victim. He said
he had spent the night at the house where the victim lived
but that he had never dressed any of the children who lived
there.

Detective
Mills testified that the Defendant had been nervous and
defensive during the interview. She said that she did not
collect rape kit evidence due to the passage of time between
the offense and her taking over the case. She noted, as well,
that at the time of the offense, "touch DNA"
evidence was not widely known and used. She agreed that the
Defendant never admitted he had intentionally touched the
victim.

Metro
Nashville Police Officer Adam Earle was called as a defense
witness and testified that based upon police records, he was
dispatched on the evening of December 21, 2013, to an address
that other evidence showed was the victim's residence. He
had no independent recollection of the call. Based upon his
report, however, he testified that he spoke with the
victim's mother. He said that he did not speak to the
victim and that standard operating procedure provided that he
not speak to child witnesses. He said it was possible that
adults other than the victim's mother had been present
and that they may have provided information. Based upon the
report, he stated that the victim's mother told him she
had left the Defendant at the house briefly while she was
away from about 1:00 to 1:15 p.m. Officer Earle did not think
the victim's mother identified any other individuals she
left in the Defendant's care. Officer Earle agreed that
the victim's mother reported the victim's having
stated after the victim's mother returned home that the
Defendant had moved the victim's panties and touched the
victim. Officer Earle said that if the victim's mother
had stated that more than one incident occurred, he would
have noted it in his report. He said that if the victim's
mother had said the Defendant and the victim had been alone
more than once, Officer Earle would have noted it in his
report. He said he had classified the incident as
"forcible fondling" but did not know if he had
changed the classification at some point. Officer Earle said
that his role had been to take a report and that follow-up
would be done by detectives at a later date. He said he
arrived at the residence at approximately 8:19 p.m. and that
he completed the report at approximately 11:32 p.m. He said
he might have been involved with other calls between the call
at the victim's house and his completing the report. He
acknowledged the possibility that he had received information
that was not reflected in his report and agreed that his
narrative in the report consisted of four sentences.

After
receiving the evidence, the jury found the Defendant guilty
of rape of a child. This appeal followed.

I

Sufficiency
of the Evidence

The
Defendant contends that the evidence is insufficient to
support his conviction because the State failed to show the
element of penetration. The State responds that the proof is
sufficient. We agree with the State.

In
determining the sufficiency of the evidence, the standard of
review is "whether, after viewing the evidence in the
light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979);
see State v. Vasques, 221 S.W.3d 514, 521 (Tenn.
2007). The State is "afforded the strongest legitimate
view of the evidence and all reasonable inferences" from
that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not "reweigh or reevaluate the
evidence, " and questions regarding "the
credibility of witnesses [and] the weight and value to be
given the evidence . . . are resolved by the trier of
fact." State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997); see State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984).

"A
crime may be established by direct evidence, circumstantial
evidence, or a combination of the two." State v.
Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). "The
standard of review 'is the same whether the conviction is
based upon direct or circumstantial evidence.'"
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

Rape of
a child is defined as "the unlawful sexual penetration
of a victim by the defendant or the defendant by a victim, if
the victim is more than three (3) years of age but less than
thirteen (13) years of age." T.C.A. § 39-13-522(a)
(2014). Sexual penetration is defined as "sexual
intercourse, cunnilingus, fellatio, anal intercourse, or any
other intrusion, however slight, of any part of a
person's body or of any object into the genital or anal
openings of the victim's, the defendant's, or any
other person's body, but emission of semen is not
required[.]" T.C.A. § 39-13-501(7) (2014). Our
supreme court has held that it is not necessary that the
vagina be entered or that the hymen be ruptured; the entering
of the vulva or labia is sufficient." State v.
Bowles, 52 S.W.3d 69, 74 (Tenn. 2001) (quoting Hart
v. State, 21 S.W.3d 901, 905 (Tenn. 2000)).

Viewed
in the light most favorable to the State, the evidence
reflects that the victim testified about an incident when she
used the computer in her aunt's kitchen and the Defendant
"digged in" her "pee pee, " which she
identified as her private area. In the forensic interview,
the victim explained relative to the term digging, "It
means you're digging in the dirt looking for stuff."
She also stated in the forensic interview that the
Defendant's fingers had gone inside her but had not gone
in the "hole" and that he moved his hand from side
to side. When the victim was shown the drawing by the
forensic interviewer and asked if he put his fingers
"inside the two parts over here, " the victim
nodded affirmatively. The victim also told the forensic
interviewer that the Defendant touched "the line on your
pee pee" and was "swinging that around."

The
Defendant argues that the State failed to prove the
penetration element of rape of a child because the victim
told the forensic interviewer that the Defendant's finger
did not go inside her, that she could not recall at the trial
whether his finger went inside her, and that both the
forensic interviewer and Officer Earle categorized the
incident reported to them as involving "fondling."
As we have noted, the victim stated that the Defendant
touched her private area but that his finger did not go
inside her "hole." Her description of his having
put his fingers inside the two parts, touching the line on
her pee pee and swinging it around, "digging, " and
moving his hand from side to side, combined with the drawing
utilized in the forensic interview which was received as a
trial exhibit, established penetration, in the legal sense,
of the victim's vulva or labia. See id. The
evidence is sufficient, and the Defendant is not entitled to
relief on this basis.

II

Admission
of Evidence of the Victim's Forensic Interview

The
Defendant contends that the trial court erred in admitting
evidence of the victim's forensic interview because Ms.
Kennedy, who conducted the interview, was not a qualified
forensic interviewer pursuant to Tennessee Code Annotated
section 24-7-123(b)(3) because her work experience did not
fulfill the statutory criteria. The State counters that the
court did not err in admitting the evidence because Ms.
Kennedy was a qualified forensic interviewer pursuant to the
statutory criteria and that, in any event, any error in the
admission of the forensic interview was harmless in view of
the victim's testimony about the offense. We conclude
that the trial court did not abuse its discretion in
admitting the recorded forensic interview.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Evidence
is relevant and generally admissible when it has "any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the evidence."
Tenn. R. Evid. 401, 402. Questions regarding the
admissibility and relevancy of evidence lies within the
discretion of the trial court, and the appellate courts will
not "interfere with the exercise of that discretion
unless a clear abuse appears on the face of the record."
State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010)
(citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn.
2007)); see State v. Justin Tyler, No.
W2015-00161-CCA-R3-CD, 2016 WL ...

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